A bulk buyer cannot amend its way out of a unanimous termination clause, the Third DCA held
A bulk buyer cannot amend its way out of a unanimous termination clause, the Third DCA held
2026-09-10 · Florida · Courts
What happened. Florida's Third District Court of Appeal held that where a condominium declaration requires unanimity both to terminate the condominium and to amend any provision altering unit owners' “voting rights,” an amendment dropping the termination threshold from 100 percent to the statutory 80 percent floor is itself an amendment to voting rights — and so needs unanimous approval it will never get.
Avila v. Biscayne 21 Condominium, Inc., No. 3D23-1616, was filed on 10 July 2025 on motion for rehearing (Bokor, J., with Fernandez and Lobree, JJ.), on appeal from the Miami-Dade Circuit Court. The court reversed and remanded for entry of a temporary injunction, and certified a question of great public importance.1
A correction on the date and posture
This decision is frequently dated 2024. It is not. The panel denied rehearing but issued a substituted opinion on 10 July 2025, which mooted a pending motion for en banc review. The operative opinion is the July 2025 one.
The reasoning
The developer's argument was that a termination threshold is not a “voting right” in the sense the declaration protects. The court's answer was textual and short:
“But it is ‘voting rights,’ not ‘right to vote.’ And context matters.”
And on what the original threshold actually conferred:
“By requiring a unanimous vote for termination, the declaration originally gave every unit owner an effective veto over any termination plan, which would be lost if the amendments at issue here were enforced.”
The court relied on Tropicana Condominium Association v. Tropical Condominium, LLC, 208 So. 3d 755 (Fla. 3d DCA 2016), and expressly declined to weigh the policy arguments: “There may be good policy reasons to allow a lower threshold for termination… But we do not set policy.”
The certified question
The court certified this question to the Florida Supreme Court:
“MAY AN AMENDMENT ALTERING THE VOTING THRESHOLD REQUIRED TO TERMINATE A CONDOMINIUM PASS WITHOUT UNANIMOUS APPROVAL WHERE A CONDOMINIUM DECLARATION BOTH: (1) REQUIRES THE UNANIMOUS APPROVAL OF THE UNIT OWNERS BEFORE EITHER TERMINATING THE CONDOMINIUM OR PASSING ANY AMENDMENT TO THE DECLARATION OF CONDOMINIUM ALTERING A UNIT OWNER'S ‘VOTING RIGHTS’ AND (2) LACKS LANGUAGE PURSUANT TO KAUFMAN V. SHERE, 347 SO. 2D 627 (FLA. 3D DCA 1977), AUTOMATICALLY INCORPORATING RELEVANT STATUTORY CHANGES INTO SUCH CONTRACTUAL PROVISIONS?”
The Florida Supreme Court declined to exercise jurisdiction in case SC2025-1169 on 14 October 2025. One sourcing caveat: the official docket document returns an access error, and we were not able to open the order directly. The denial is corroborated by the court's own indexed record and by multiple firm alerts, but we flag it as not personally verified.
The Kaufman question is the whole ballgame
The certified question turns on a doctrine from 1977 that most owners have never heard of and that decides these cases. Kaufman v. Shere language is a clause in a declaration providing that the document incorporates the condominium statute as amended from time to time.
Where a declaration has Kaufman language, later statutory changes — including the 80 percent termination threshold in s. 718.117(3) — flow into the contract automatically. Where it lacks Kaufman language, the declaration is read as the contract the original owners made, and a statutory floor enacted decades later does not override a unanimity clause they bargained for.
So the first question in any Florida bulk-buyout analysis is not the statutory threshold. It is: does this declaration contain Kaufman language, and what does its amendment clause protect? Read the termination clause and the amendment clause together, not the statute alone.
What the underlying fight looked like
Biscayne 21 is a 1964 Edgewater building of 192 units. Two Roads Development borrowed $150 million and acquired 183 of them, offering unit owners roughly $697,000 each, with at least one owner reported to have received over $1 million. Holdouts refused. The building was gutted in August 2023, and the projected repair bill has been reported at $61 million against holdout demands of $100 million.
Reporting we were able to verify records the appellate outcome above and the Supreme Court's refusal of review. Subsequent procedural history — a January 2026 circuit court order reportedly requiring the developer to restore the building at its own expense, a late-January 2026 suit seeking equitable termination on an economic-waste theory, and a settlement reported at roughly $50 million funded on 31 August 2026 — comes from single-chain reporting we could not confirm against primary documents, and we identify it as such rather than printing it as fact.2
Why this matters more in 2026 than it would have in 2016
Termination pressure on ageing Florida condominiums is not primarily about redevelopment appetite any more. It is about structural cost.
The milestone inspection regime under s. 553.899 and the structural integrity reserve study requirement under s. 718.112(2)(g) have put real repair numbers in front of buildings that had deferred them for decades. OPPAGA's first statewide dataset recorded 903 repair-permit applications arising from phase two inspections, with values “from under $1,000 to $30 million” and averages of $337,229 in 2024 and $496,236 in 2025. When the repair bill exceeds what owners can assess, a bulk buyer's offer stops being an opportunity and becomes the only exit on the table.
That is the context in which a unanimity clause becomes extremely valuable to a holdout and extremely expensive to a buyer.
What each side should actually do
An owner facing a buyout offer should get the declaration — the recorded original, plus every amendment — and have counsel answer two questions before engaging on price: does it contain Kaufman language, and does the amendment clause protect “voting rights” by unanimity? Those two answers determine whether the 80 percent statutory floor applies at all.
A board is not a neutral party in an amendment vote of this kind, and an amendment purporting to lower a protected threshold may be void rather than merely contestable.
A buyer now has a published Third DCA decision, a certified question the Supreme Court declined to answer, and no statewide resolution. That is an unusually unattractive combination for a nine-figure acquisition strategy.
What did not change this session
The Legislature did not touch s. 718.117 in 2026. A rewrite is reportedly being drafted for the 2027 session — a fixed 80 percent supermajority, a cost-to-value repair test, and a judicial petition process for termination — but that is a law firm describing a drafting effort. There is no bill number, no sponsor and no filed instrument, and the Florida Bar's Real Property, Probate and Trust Law Section lists no current legislative position on it.3
Nothing at all in this subject area has been filed for 2027; the substantive filing window runs to noon on 2 March 2027.
What to watch next
Whether another district reaches the Kaufman question and creates a conflict — which is the most likely route to Supreme Court review after a discretionary denial. Until then, Avila is binding in the Third District, persuasive elsewhere, and the leading Florida authority on condominium termination thresholds.
Related Florida HOA Topics
- Avila v. Biscayne 21 Condominium, Inc., No. 3D23-1616 (Fla. 3d DCA 10 July 2025) — substituted opinion on rehearing ↩
- Florida Trend, “Two Roads Diverged” — reporting on the Biscayne 21 acquisition and litigation, April 2026 ↩
- Bilzin Sumberg, Emerging Pressure Points — describing a drafting effort on s. 718.117(2), May 2026 ↩
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